Letterkenny Army Depot (Activity) and National Federation of Federal Employees, Local 1429 (Union) 

 5 FLRA No. 35
 
 LETTERKENNY ARMY DEPOT
 Activity
 
 and
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 1429
 Union
 
                                            Case No. 0-AR-138
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR HILLARD KREIMER FILED BY THE UNION UNDER SECTION 7122(A) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7122(A)).
 
    ACCORDING TO THE ARBITRATOR, THE DISPUTE IN THIS MATTER CONCERNS THE
 ACTIVITY'S DENIAL OF OVERTIME WORK TO A NUMBER OF EMPLOYEES.  FOUR OF
 THE GRIEVANTS WERE AMONG THE EMPLOYEES IN THE ACTIVITY'S VEHICLE SHOP
 WHO WERE SCHEDULED FOR OVERTIME WORK ON A PARTICULAR SATURDAY.  ON
 FRIDAY OF THAT WEEK, THE OVERTIME AUTHORIZATION WAS REDUCED.  THE
 ACTIVITY DENIED THE GRIEVANTS THE AVAILABLE OVERTIME BECAUSE EACH HAD
 TAKEN LEAVE DURING THE WEEK.  IN ANOTHER DIVISION OF THE ACTIVITY,
 OVERTIME WORK WAS LIMITED.  TWO EMPLOYEES IN THIS DIVISION REQUESTED THE
 OPPORTUNITY FOR OVERTIME WORK, BUT THEY WERE DENIED OVERTIME BECAUSE OF
 LEAVE TAKEN DURING THE WEEK OF THE AVAILABLE OVERTIME.  ALL SIX
 EMPLOYEES FILED GRIEVANCES CLAIMING A VIOLATION OF THE OVERTIME
 PROVISION OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT WHICH
 RELEVANTLY PROVIDED:  /1/
 
    OVERTIME WILL BE EQUITABLY DIVIDED AMONG EMPLOYEES HAVING THE SAME
 SKILL, JOB
 
    CLASSIFICATION AND BELONGING TO THE SAME ORGANIZATION.  . . .
 ABSENCES DURING THE WEEK IN
 
    WHICH OVERTIME IS WORKED WILL NOT IN ITSELF PRECLUDE ASKING EMPLOYEES
 TO PERFORM OVERTIME
 
    WORK.  THE GRIEVANCES WERE NOT RESOLVED AND WERE SUBMITTED TO
 ARBITRATION.
 
    THE ARBITRATOR CONCLUDED THAT THE ACTIVITY'S OBLIGATION UNDER THE
 AGREEMENT WAS TO DISTRIBUTE OVERTIME EQUITABLY AMONG EMPLOYEES WITH THE
 SAME SKILL, JOB CLASSIFICATION, AND ORGANIZATION.  TO THE ARBITRATOR
 THIS MEANT THAT
 
    WHERE THERE IS A SINGLE OVERTIME PLACE FOR TWO SUCH EMPLOYEES, WITH
 ONE HAVING ACCUMULATED
 
    FAR MORE OVERTIME HOURS THAN THE OTHER, IT WOULD BE WRONG FOR
 MANAGEMENT TO DENY THE WORK TO
 
    THE EMPLOYEE WITH THE LESSER HOURS SIMPLY BECAUSE HE HAD BEEN ABSENT
 DURING THE WEEK FOR
 
    WHATEVER THE REASON.  HE RULED THAT SUCH ACTION BY MANAGEMENT WOULD
 VIOLATE THE REQUIREMENT OF EQUITABLE DISTRIBUTION OF OVERTIME.  HOWEVER,
 THE ARBITRATOR DETERMINED THAT THE FACTS OF THESE GRIEVANCES WERE
 "SPECIAL." HE NOTED THAT THE EMPLOYEES WHO ACTUALLY WORKED THE DISPUTED
 OVERTIME AND THE GRIEVANTS ALL HAD THE SAME SKILLS, THE SAME JOB
 CLASSIFICATION, AND AT THE RELEVANT TIMES APPROXIMATELY THE SAME NUMBER
 OF OVERTIME HOURS.  THE ARBITRATOR EXPLAINED THAT THEREFORE THE ACTIVITY
 WAS FACED WITH THE IDENTICAL QUESTION IN EVERY INSTANCE:  "WHO SHOULD BE
 ELIMINATED FROM THE OVERTIME OPPORTUNITY?" HE OBSERVED THAT THE
 ACTIVITY'S SOLUTION WAS TO "RUL(E) OUT THOSE WHO HAD TAKEN LEAVE." IN
 THESE CIRCUMSTANCES, THE ARBITRATOR FOUND:
 
    (T)HIS WAS AS OBJECTIVE AN APPROACH AS ANY OTHER, SUCH AS DRAWING
 LOTS OR TOSSING A
 
    COIN.  THERE WAS NO CONTRACT TERM TO PREVENT THIS APPROACH.  IT WAS
 NEITHER DISCRIMINATORY NOR
 
    UNREASONABLE.  MANAGEMENT'S METHOD, THEN, CANNOT BE FAULTED.  THUS,
 AS HIS AWARD, THE ARBITRATOR DENIED THE GRIEVANCES.
 
    THE UNION HAS FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD UNDER
 SECTION 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE /2/ AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS, 5
 CFR PART 2425.  THE AGENCY DID NOT FILE AN OPPOSITION.
 
    THE QUESTION BEFORE THE AUTHORITY IS WHETHER, ON THE BASIS OF THE
 UNION'S EXCEPTIONS, THE ARBITRATOR'S AWARD IS DEFICIENT BECAUSE IT IS
 CONTRARY TO ANY LAW, RULE, OR REGULATION, OR IS DEFICIENT ON OTHER
 GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR
 LABOR-MANAGEMENT RELATIONS CASES.
 
    IN ITS FIRST EXCEPTION TO THE AWARD, THE UNION CONTENDS THAT "(T)HE
 ARBITRATOR ERRED IN NOT RECOGNIZING (A) PAST PRACTICE." IN SUPPORT OF
 THIS EXCEPTION, THE UNION MAINTAINS THAT A SYSTEM OF ROTATIONAL SERVICE
 HAD BEEN DEVISED TO PROVIDE FOR THE EQUITABLE DISTRIBUTION OF OVERTIME.
 THE UNION ARGUES THAT THE APPROACH AND METHOD USED BY THE ACTIVITY IN
 THIS CASE IN DISTRIBUTING THE DISPUTED OVERTIME "CONTRADICTED BOTH THE
 NEGOTIATED CONTRACT AND ESTABLISHED PAST PRACTICE." THUS, THE UNION
 CLAIMS THAT THE AWARD IS DEFICIENT BY FAILING TO RECOGNIZE THIS PAST
 PRACTICE.
 
    THE SUBSTANCE OF THE UNION'S EXCEPTION IS THAT A BINDING, ESTABLISHED
 PAST PRACTICE ASSERTEDLY EXISTED AS A BASIS ON WHICH, CONTRARY TO THE
 ARBITRATOR'S SPECIFIC FINDINGS, MANAGEMENT'S "APPROACH" AND "METHOD" IN
 THIS CASE FOR DISTRIBUTING THE DISPUTED OVERTIME SHOULD HAVE BEEN
 "PREVENT(ED)" AND SHOULD HAVE BEEN "FAULTED." IT IS WELL ESTABLISHED
 THAT "THE PRACTICES OF THE INDUSTRY AND SHOP-- (ARE) EQUALLY A PART OF
 THE COLLECTIVE BARGAINING AGREEMENT ALTHOUGH NOT EXPRESSED IN IT."
 STEELWORKERS V. WARRIOR & GULF NAVIGATION CO., 363 U.S. 574, 482(1960).
 THUS BY ARGUING THAT THE ARBITRATOR FAILED TO RECOGNIZE A PAST PRACTICE,
 THE UNION IS MERELY DISAGREEING WITH THE ARBITRATOR'S INTERPRETATION AND
 APPLICATION OF THE AGGREGATE COLLECTIVE BARGAINING AGREEMENT OF THE
 PARTIES, BASED ON THE EVIDENCE BEFORE HIM, TO FIND THAT SUCH AGREEMENT
 DID NOT "PREVENT (THE ACTIVITY'S) APPROACH" IN DISTRIBUTING OVERTIME.
 IN THIS RESPECT, THE AUTHORITY HAS CONSISTENTLY RULED THAT THE
 INTERPRETATION AND APPLICATION OF A COLLECTIVE BARGAINING AGREEMENT IS A
 QUESTION FOR THE ARBITRATOR AND THAT INSOFAR AS THE ARBITRATOR'S AWARD
 CONCERNS THE CONSTRUCTION OF THAT AGREEMENT, A PARTY'S DISAGREEMENT WITH
 THAT INTERPRETATION, APPLICATION, OR CONSTRUCTION PRESENTS NO BASIS FOR
 FINDING AN ARBITRATION AWARD DEFICIENT.  E.G., UNITED STATES ARMY
 MISSILE MATERIEL READINESS COMMAND (USAMIRCOM) AND AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES, LOCAL 1858, AFL-CIO, 2 FLRA NO. 60(1980).
 OVERSEAS EDUCATION ASSOCIATION AND DEPARTMENT OF DEFENSE, OFFICE OF
 DEPENDENTS SCHOOLS, 4 FLRA NO. 1(1980).  CONSEQUENTLY, THIS EXCEPTION
 PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT UNDER 5 U.S.C. 7122(A)
 AND SECTION 2425.3 OF THE AUTHORITY'S RULES.
 
    IN ITS SECOND EXCEPTION THE UNION CONTENDS THAT THE AWARD IS
 "ARBITRARY AND CONTRADICTORY." IN SUPPORT, THE UNION EMPHASIZES THAT THE
 ARBITRATOR ACKNOWLEDGED THAT THE ACTIVITY'S SOLUTION IN THIS CASE WAS TO
 "RUL(E) OUT THOSE WHO HAD TAKEN LEAVE." THE UNION FURTHER EMPHASIZES
 THAT NONETHELESS THE ARBITRATOR EXPRESSLY DETERMINED THAT "(T)HERE WAS
 NO CONTRACT TERM TO PREVENT THIS APPROACH." THE UNION ARGUES THAT THIS
 DETERMINATION IGNORED THE AGREEMENT PROVISION THAT ABSENCE WOULD NOT IN
 ITSELF PRECLUDE ASKING EMPLOYEES TO PERFORM OVERTIME.  THUS, THE UNION
 CLAIMS THAT THEREFORE THE ARBITRATOR CONTRADICTS HIMSELF IN HIS
 DECISION.  HOWEVER, CONTRARY TO THE UNION'S ASSERTION, THAT THE
 ARBITRATOR "IGNORED" THIS AGREEMENT PROVISION, IT IS CLEAR THAT THE
 ARBITRATOR SPECIFICALLY ADDRESSED IT.  AS WAS NOTED, THE ARBITRATOR
 QUOTED THE PROVISION, CONCLUDED THAT IT WAS CONTROLLING, SUMMARIZED IT
 AS REQUIRING THE EQUITABLE DISTRIBUTION OF OVERTIME, EXPLAINED IN WHAT
 CIRCUMSTANCES IT WOULD BE VIOLATED, BUT, IN THE CIRCUMSTANCES OF THE
 GRIEVANCES PRESENTED, FOUND THAT IT DID NOT "PREVENT" MANAGEMENT'S
 APPROACH AND METHOD OF DISTRIBUTING THE DISPUTED OVERTIME IN THIS CASE.
 THUS, THE UNION'S ASSERTION OF A CONTRADICTION BETWEEN THE ARBITRATOR'S
 ACKNOWLEDGEMENT OF THE ACTIVITY'S SOLUTION AND HIS FINDING THAT THE
 CONTRACT DID NOT PREVENT SUCH A SOLUTION AGAIN CONSTITUTES NOTHING MORE
 THAN DISAGREEMENT WITH ARBITRATOR'S INTERPRETATION AND APPLICATION OF
 THE AGREEMENT TO FIND THAT IT DID NOT "PREVENT" MANAGEMENT'S ACTIONS IN
 THIS CASE.  AS HAS BEEN EMPHASIZED, SUCH ASSERTIONS PRESENT NO BASIS FOR
 FINDING AN ARBITRATION AWARD DEFICIENT UNDER THE STATUTE.  CONSEQUENTLY,
 THE UNION'S EXCEPTION THAT THE AWARD IS ARBITRARY AND CONTRADICTORY
 PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT UNDER 5 U.S.C. 7122(A)
 AND SECTION 2425.3 OF THE AUTHORITY'S RULES.
 
    IN ITS THIRD EXCEPTION THE UNION CONTENDS THAT THE AWARD FAILS TO
 DRAW ITS ESSENCE FROM THE COLLECTIVE BARGAINING AGREEMENT.  IN SUPPORT
 THE UNION EMPHASIZES THAT THE ARBITRATOR ACKNOWLEDGED THAT THE ONLY
 DIFFERENCE BETWEEN THE EMPLOYEES WHO WORKED OVERTIME AND THE GRIEVANTS
 WAS THAT THE GRIEVANTS HAD TAKEN LEAVE.  THE UNION FURTHER EMPHASIZES
 THAT NONETHELESS THE ARBITRATOR FOUND THAT MANAGEMENT'S METHOD OF
 DISTRIBUTING THE DISPUTED OVERTIME COULD NOT, BE FAULTED.  THE UNION
 CLAIMS THAT THIS DECISION IS "CLEARLY NOT IN LINE WITH" THE AGREEMENT'S
 PROVISION THAT LEAVE WOULD NOT IN ITSELF EXCLUDE EMPLOYEES FROM
 OVERTIME.
 
    THE UNION'S EXCEPTION THAT THE AWARD FAILS TO DRAW ITS ESSENCE FROM
 THE COLLECTIVE BARGAINING AGREEMENT STATES A GROUND ON WHICH THE
 AUTHORITY WILL FIND AN AWARD DEFICIENT UNDER SECTION 7122(A)(2) OF THE
 STATUTE.  UNITED STATES ARMY MISSILE MATERIEL READINESS COMMAND
 (USAMIRCOM) AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1858,
 AFL-CIO, 2 FLRA NO. 60(1980).  THE AUTHORITY HAS STATED THAT IN ORDER TO
 FIND AN AWARD DEFICIENT ON THIS GROUND, CONSISTENT WITH THE STANDARD
 APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR CASES, IT MUST BE
 DEMONSTRATED THAT
 
    THE ARBITRATOR'S AWARD CANNOT IN ANY RATIONAL WAY BE DERIVED FROM THE
 AGREEMENT;  OR IS SO
 
    UNFOUNDED IN REASON AND FACT, SO UNCONNECTED WITH THE WORDING AND
 PURPOSE OF THE COLLECTIVE
 
    BARGAINING AGREEMENT AS TO MANIFEST AN INFIDELITY TO THE OBLIGATION
 OF THE ARBITRATOR;  OR THAT
 
    IT EVIDENCES A MANIFEST DISREGARD OF THE AGREEMENT;  OR THAT, ON ITS
 FACE, THE AWARD DOES NOT
 
    REPRESENT A PLAUSIBLE INTERPRETATION OF THE CONTRACT.  OVERSEAS
 EDUCATION ASSOCIATION AND OFFICE OF DEPENDENT SCHOOLS, DEPARTMENT OF
 DEFENSE, 4 FLRA NO. 17 (1980).  HOWEVER, IN THIS CASE, THE UNION'S
 ARGUMENT THAT THE ARBITRATOR'S FINDING THAT MANAGEMENT'S METHOD COULD
 NOT BE FAULTED WAS "CLEARLY NOT IN LINE WITH" THE AGREEMENT PROVIDES NO
 BASIS FOR FINDING THAT THE AWARD DOES NOT DRAW ITS ESSENCE FROM THE
 COLLECTIVE BARGAINING AGREEMENT.  INSTEAD, THE UNION IS AGAIN
 DISAGREEING WITH THE ARBITRATOR'S INTERPRETATION AND APPLICATION OF THE
 AGREEMENT.  CONSEQUENTLY, THE UNION'S EXCEPTION PROVIDES NO BASIS FOR
 FINDING THE AWARD DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION 2425.3 OF
 THE AUTHORITY'S RULES.  AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 NATIONAL BORDER PATROL COUNCIL AND U.S.  IMMIGRATION AND NATURALIZATION
 SERVICE, SOUTHERN REGION, DALLAS, TEXAS, 3 FLRA NO. 87(1980).
 
    FOR THE FOREGOING REASONS AND PURSUANT TO SECTION 2425.4 OF THE
 AUTHORITY'S RULES, THE ARBITRATOR'S AWARD IS SUSTAINED.
 
    ISSUED, WASHINGTON, D.C., MARCH 9, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ ALTHOUGH THE GRIEVANCES HAD OCCURRED AFTER THIS AGREEMENT HAD
 EXPIRED AND BEFORE THE PARTIES' NEW AGREEMENT HAD BEEN NEGOTIATED, THE
 ARBITRATOR DETERMINED THAT IN THE CIRCUMSTANCES OF THIS CASE, THE
 EXPIRED AGREEMENT'S OVERTIME PROVISION WAS CONTROLLING FOR PURPOSES OF
 THESE GRIEVANCES.
 
    /2/ 5 U.S.C. 7122(A) PROVIDES:
 
    (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 AUTHORITY AN EXCEPTION
 
    TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN
 AWARD RELATING TO A
 
    MATTER DESCRIBED IN SECTION 7121(F) OF THIS TITLE).  IF UPON REVIEW
 THE AUTHORITY FINDS THAT
 
    THE AWARD IS DEFICIENT--
 
    (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION;  OR
 
    (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
 PRIVATE SECTOR
 
    LABOR-MANAGEMENT RELATIONS;
 
    THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
 CONCERNING THE AWARD AS IT
 
    CONSIDERS NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES, OR
 REGULATIONS.